A relevant case where a developer initially won approval on the basis of Paragraph 11 but subsequently lost in court is Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2020] EWHC 518 (Admin).
Case Summary
Gladman Developments Ltd appealed against the decision of the Secretary of State and local planning authorities, leveraging Paragraph 11 of the NPPF, which provides a presumption in favour of sustainable development. Gladman argued that the “tilted balance” should apply because the local authorities did not have a five-year supply of deliverable housing sites, rendering local policies out of date.
Court’s Decision
High Court Ruling: The High Court upheld the rejection of the applications despite the lack of a five-year housing supply. It ruled that development plan policies could still be considered under the tilted balance, and local plans’ policies should not be disregarded when applying Paragraph 11.
Court of Appeal: The Court of Appeal confirmed this decision, emphasising that even when the tilted balance applies, it does not exclude development plan policies from consideration. The court found no error in the decision-making process of the Planning Inspector and the High Court, noting that they correctly applied both the NPPF and local development policies.
Implications
This case illustrates that the application of Paragraph 11 does not automatically guarantee approval if there are substantial adverse impacts or conflicts with existing development plans. The courts reinforced that environmental designations and other material considerations must still be weighed appropriately.
Your full name, as anonymous comments will not be considered.
The addressof the plot of land that the planning application is about.
The planning application reference number.
Please Note:
1. All comments you make will be available online through the council website, so only include information you are comfortable sharing publicly. Rest assured, the council will not publish your name.
2. You must comment on a planning application within 21 days of it being registered, the deadline for each application is specified online. Unless there is a reason for an extension of the deadline, such as the EHDC portal being down.
How to Ensure Your Comments are Taken Seriously
Planning authorities are legally bound to consider only material planning considerations when making decisions on planning applications. These considerations include factors such as local and national planning policies, environmental impact, traffic and access, air and water quality, design and appearance, economic benefits, flood risk, heritage and conservation, infrastructure and service, land use, public opinion, sustainability and residential amenity.
An objection grounded in these considerations is more likely to be taken seriously and have an impact on the decision-making process.
Heritage and Conservation considerations focus on the protection and enhancement of historic and culturally significant buildings, structures, landscapes, and areas. These considerations ensure that new developments respect and preserve the historical and architectural integrity of heritage assets while contributing to the area’s overall character and identity.
Residential Amenity refers to the overall quality of life and comfort experienced by residents in their homes and neighbourhoods. When evaluating planning applications, authorities consider how a proposed development will impact the living conditions of nearby residents and the general ambiance of the area.
Design and Appearance in the context of material planning considerations refer to the aesthetic, functional, and contextual attributes of a proposed development. These considerations ensure that new developments are visually appealing, functionally appropriate, and harmoniously integrated into the existing built and natural environment.
Environmental Impact refers to the effect that a proposed development may have on the natural environment. This consideration is crucial for ensuring that new developments do not adversely affect ecosystems, biodiversity, natural resources, and the overall quality of the environment.
Traffic and Access are critical factors in evaluating planning applications. These considerations focus on the impact a proposed development will have on the local transportation network, road safety, accessibility for all users, and the adequacy of infrastructure to support the development.
When considering planning applications, councils typically exclude non-material planning considerations. These factors are not relevant to the decision-making process because they do not directly relate to land use and planning policies.
Common non-material considerations include:
Effect on Property Values: The impact of a development on the value of nearby properties is not considered a valid planning issue.
Personal Circumstances: Individual personal circumstances of the applicant or neighbours, such as financial situations or specific health needs, are generally not taken into account.
Private Disputes: Disputes between neighbours, such as boundary issues or personal disagreements, are not planning matters.
Loss of a Private View: The impact on an individual’s private view from their property is not a material planning consideration.
Commercial Competition: Concerns about new businesses competing with existing ones are not typically considered in planning decisions.
Moral Objections: Objections based on personal beliefs or moral viewpoints, such as opposition to the type of business being proposed (e.g., betting shops, fast food outlets), are usually not taken into account.
Construction Disturbances: Temporary inconveniences during the construction phase, such as noise, dust, and traffic disruptions, are not considered material planning issues.
Covenants and Deeds: Private legal agreements, such as restrictive covenants in property deeds, are not planning matters.
Speculative Developments: Concerns about future developments or changes that are not part of the current planning application are not relevant. While speculative future developments are not relevant on their own, the cumulative impact of already approved or pending applications should be considered to understand the broader environmental and community effects. Thus, assessing cumulative impact ensures all related developments are factored into the decision-making process.
Economic Impact on Local Businesses: General concerns about the economic impact on local businesses, aside from land use considerations, are usually excluded.
Water butts are large containers designed for collecting and storing rainwater, typically from the roof via downpipes. This stored water can then be used for various purposes, primarily in gardening and landscaping, to reduce the use of mains water.
Regularly check for debris that might block the inlet.
Clean the interior occasionally to prevent algae and mosquito breeding.
Ensure that the lid is secure to keep out leaves and pests.
Water butts are a practical and environmentally friendly way to conserve water, especially useful for gardeners and those looking to reduce their environmental footprint.
Defra Biodiversity Metric 3.0 is a tool developed by the UK Department for Environment, Food & Rural Affairs (Defra) and Natural England to measure and account for biodiversity losses and gains resulting from development or changes in land management. This metric is crucial for ensuring that new developments achieve Biodiversity Net Gain (BNG), meaning they leave the natural environment in a better state than before.
The metric is used throughout the planning and development process to ensure that biodiversity gains are considered and achieved.
It supports the legal requirement under the Environment Bill for developments to achieve at least a 10% net gain in biodiversity.
Implementation and Benefits
Developers use the metric to plan and demonstrate how their projects will achieve BNG, either through on-site improvements or off-site compensatory measures.
Ecologists utilize the metric for accurate biodiversity assessments and to guide habitat management decisions.
Local Planning Authorities ensure compliance with BNG requirements by incorporating the metric into their planning processes.
By providing a standardised, transparent method for measuring biodiversity, the Defra Biodiversity Metric 3.0 plays a critical role in enhancing environmental sustainability in urban and rural development.
Biodiversity Net Gain (BNG) is a principle and practice within environmental management and planning aimed at ensuring that development projects leave the natural environment in a measurably better state than it was before. This concept focuses on enhancing habitats and ecosystems, thereby increasing biodiversity rather than just mitigating harm.
Baseline Assessment: Conducting an initial assessment to understand the existing biodiversity and ecological value of a site before development.
Quantitative Metrics: Using standardized metrics to measure biodiversity losses and gains. In the UK, the Defra Biodiversity Metric 3.0 is often used for this purpose.
Community and Expert Involvement: Engaging local communities, ecologists, and other stakeholders in the planning and implementation process to ensure the measures are appropriate and effective.
Improves quality of life by creating green spaces and promoting well-being.
Implementation in Policy
Many countries are integrating BNG into their planning policies. For example, in the UK, the Environment Act 2021 mandates that new developments must deliver at least a 10% net gain in biodiversity, calculated using the Defra Biodiversity Metric 3.0.
Sustainable Drainage Systems (SuDS) are a collection of water management practices designed to mitigate the adverse effects of urban stormwater runoff and promote the natural water cycle. The primary objectives of SuDS are to manage surface water sustainably, enhance water quality, and provide amenity and biodiversity benefits.
SuDS aim to manage surface water runoff close to where it falls and mimic natural drainage as closely as possible. This involves techniques such as infiltration, storage, and slow release of water to reduce flood risk.
By filtering pollutants from runoff, SuDS help to improve the quality of water entering rivers, lakes, and other water bodies. This can be achieved through natural filtration processes involving vegetation and soil.
SuDS can create attractive environments and habitats for wildlife. Features such as green roofs, ponds, wetlands, and swales can enhance the local environment, providing recreational spaces and supporting biodiversity.
In many local planning authorities, including East Hampshire District Council (EHDC), certain types of planning applications are indeed referred to the Planning Committee rather than being decided by planning officers under delegated powers.
This typically includes larger and more controversial developments, such as those that are outside settlement boundaries or involve a significant number of new houses. Here’s how this works:
Criteria for Referring Applications to the Planning Committee
Large Developments: Applications involving a significant number of new houses (such as over 50) are often referred to the Planning Committee due to their potential impact on the local area.
Outside Settlement Boundaries: Developments proposed outside the designated settlement boundaries are likely to be scrutinized more closely, especially if they involve substantial construction, as these areas are usually protected by local planning policies to control urban sprawl and preserve the character of the countryside.
High Public Interest: Applications that generate a large number of public comments or objections are more likely to be considered by the Planning Committee.
Controversial Developments: Projects that are contentious or have significant local opposition may also be referred to the Committee to ensure a transparent decision-making process.
Policy Deviations: Proposals that do not fully comply with local or national planning policies may require Committee consideration to carefully weigh the benefits and impacts.
Sensitive Areas: Developments affecting sensitive areas such as green belts, conservation areas, or sites with environmental or historical significance are typically referred to the Committee.
Preparation: The planning officers prepare a report for the Planning Committee, summarizing the application, relevant policies, consultation responses, public comments, and a recommendation.
Publication: The agenda for the Committee meeting, including the report and recommendations, is published in advance.
Presentation: The planning officer presents the report and recommendation.
Public Input: Registered speakers present their comments.
Debate and Decision: Councillors debate the application and make a decision by voting.
Delegated Powers
Routine Applications: Smaller and less controversial applications are often decided by planning officers under delegated powers to streamline the process.
Criteria for Delegation: The criteria for delegation and Committee referral are typically set out in the Council’s Constitution or Scheme of Delegation.
Specific Policy for EHDC
For East Hampshire District Council, the specific criteria for referring applications to the Planning Committee can be found in their local planning policies and procedural documents. It is common for larger developments, especially those outside settlement boundaries and involving a significant number of houses, to be referred to the Planning Committee.
Conclusion
In summary, applications for developments over 50 houses or those outside settlement boundaries are typically referred to the Planning Committee rather than being decided by planning officers under delegated powers due to their potential impact and the level of public interest.
In the current state of the housing market, developers often prioritise maximising their profits over the needs and well-being of local communities. This approach is not beneficial for the region. It drains resources from certain locations, putting undue pressure on local infrastructure and services. Communities are left to deal with increased traffic congestion, inadequate public services, and environmental degradation. The rapid population growth in Medstead, for example, has resulted in an over 40% increase in the period from 2011-2021 due to piecemeal developments, exacerbating these issues.
The Need for a Balanced Approach
Developers are primarily focused on achieving the highest possible returns on their investments, often at the expense of the local communities they are building in. This has led to a scenario where the competition is not for creating the best living environments but for maximising profits. This imbalance needs to be addressed to ensure sustainable development that benefits everyone involved.
The Role of Section 106
Section 106 of the Town and Country Planning Act 1990 is a powerful tool that local authorities can use to require developers to mitigate the impacts of their developments. These agreements, also known as planning obligations, can be used to secure contributions towards local infrastructure, affordable housing, and other community benefits.
Introducing a Profit Cap
One innovative approach to ensure fairness and reinvestment into local communities is to introduce a profit cap for developers. This cap would limit the profit developers can make on each property to a certain percentage above the average profit margin for similar properties in the region. Any excess profits would then be used to fund local infrastructure projects and the development of new settlements.
Benefits of a Profit Cap
Fair Distribution of Wealth: By capping profits, we can ensure that the financial benefits of development are more evenly distributed, supporting community projects and infrastructure development.
Incentivizing Sustainable Development: Developers would be encouraged to focus on the quality and sustainability of their developments rather than purely on profit maximisation.
Reducing Overdevelopment: This approach would help control the pace and scale of development, preventing the overburdening of local infrastructure and services.
Implementation at EHDC
For East Hampshire District Council, implementing a profit cap could be a game-changer. It would require a policy change, potentially through the local development plan, to ensure that developers adhere to these new rules. This policy could be enforced during Section 106 negotiations, particularly for developments outside settlement boundaries and not included in the local development plan.
Challenges and Considerations
Legal and Regulatory Framework: Introducing a profit cap would require careful navigation of existing legal frameworks and potential resistance from developers.
Accurate Profit Assessment: Determining and enforcing a fair profit cap would require transparent and accurate accounting methods.
Stakeholder Engagement: Engaging with developers, community groups, and other stakeholders would be crucial to ensure broad support and effective implementation.
Conclusion
The current planning application process needs a thorough audit to ensure it serves the best interests of the community. Developers have been exploiting the loopholes and using policies like Paragraph 11 of the National Planning Policy Framework to push through developments that prioritise profits over sustainable and equitable growth. By introducing a profit cap and leveraging Section 106 agreements, we can create a more balanced and fair development process that benefits all stakeholders, particularly the local communities that bear the brunt of unchecked development.
By taking these steps, East Hampshire District Council can lead the way in creating a more sustainable and equitable housing market, ensuring that development contributes positively to the community rather than simply draining its resources.
In the current state of the housing market, developers are increasingly driven by the principle of maximising profits rather than competing for customers based on the quality and sustainability of their developments. This trend is particularly evident in rural regions like Medstead, where developers are exploiting loopholes and leveraging Paragraph 11 of the National Planning Policy Framework (NPPF) to push through planning applications that would otherwise face rigorous scrutiny.
The Need for a Profit Cap Mechanism
Profit Over People:
Developers are primarily focused on maximising their profits, often at the expense of local communities. This profit-driven approach can lead to developments that strain local infrastructure, degrade the environment, and fail to meet the needs of existing residents. In many cases, developers are not competing to provide the best homes for buyers but rather to extract the most profit from the land they develop.
Impact on Local Communities:
This approach is not beneficial for the region. It drains resources from certain locations, putting undue pressure on local infrastructure and services. Communities are left to deal with increased traffic congestion, inadequate public services, and environmental degradation. For example, the rapid population growth in Medstead, which saw over a 40% increase between 2011 and 2021 due to piecemeal developments, has exacerbated these issues.
The Role of Section 106 Agreements:
Section 106 of the Town and Country Planning Act 1990 allows local planning authorities to enter into agreements with developers to mitigate the impacts of new developments. However, these agreements often fall short of addressing the full range of impacts because they do not cap the profits that developers can make. Introducing a profit cap mechanism within Section 106 agreements could ensure that a fair portion of the profits generated from new developments is reinvested into local infrastructure and community benefits.
Implementing a Profit Cap Mechanism
Local Policy Development:
To implement a profit cap mechanism, local planning authorities need to develop robust policies that set clear limits on the profits that developers can make from new housing developments. This could involve comparing the minimum profit margins for similar developments in the region and setting a cap that ensures reasonable profits while directing excess profits towards community benefits.
Utilising Excess Profits:
The excess profits above the cap should be allocated in two primary ways:
Immediate Neighbourhood Impact: Covering the direct impact on the immediate neighbourhood, such as improvements to local infrastructure, schools, healthcare facilities, and other community services that will be directly affected by the new development.
Investment in New Settlements: Investing in the development of infrastructure for new settlements, ensuring that these areas are equipped with the necessary services and facilities to support sustainable growth. This could include building new roads, utilities, public transportation systems, schools, and healthcare facilities in planned new settlements.
Negotiating Enhanced Contributions:
For developments outside settlement boundaries and not included in the local development plan, local planning authorities should negotiate enhanced contributions through Section 106 agreements. These contributions should reflect the additional strain on local infrastructure and the need for sustainable development.
Ensuring Compliance with Strategic Planning Policies:
Developments outside settlement boundaries should face rigorous scrutiny to ensure compliance with strategic planning policies. Enhanced Section 106 contributions should be negotiated to mitigate the impacts of such developments, particularly those leveraging Paragraph 11 of the NPPF to justify their proposals.
Developers are currently exploiting Paragraph 11 of the NPPF, which provides a presumption in favour of sustainable development. This has created a window of opportunity for developers to maximize their profits by pushing through planning applications with minimal oversight. The lack of a profit cap mechanism allows developers to extract maximum profits without adequately contributing to the infrastructure and services needed to support new developments.
A Call for a Full Audit:
The planning application process requires a full audit of procedures to ensure that it serves the best interests of local communities. This audit should focus on identifying and closing loopholes that developers exploit, ensuring that all developments are sustainable and beneficial to the region.
Conclusion
The implementation of a profit cap mechanism within Section 106 agreements is crucial to ensuring that housing developments contribute fairly to local infrastructure and community needs. By introducing such a mechanism, local planning authorities can ensure that the profits generated from new developments are reinvested into the region, supporting sustainable growth and improving the quality of life for residents.
This approach aligns with the principles of sustainable development and helps manage the impacts of new housing developments on local communities. It is time to shift the focus from maximising profits to building sustainable, vibrant communities that benefit all residents.
If the court grants the injunction, it will order the local planning authority to halt the approval process or the developer to cease any development activities.
Monitor compliance with the court’s decision and take further legal action if necessary.
Key Points to Consider
Strong Evidence: The success of an injunction largely depends on the strength and credibility of your evidence.
Legal Expertise: Engaging experienced legal counsel is crucial to navigate the complexities of planning law and court procedures.
Public Support: Demonstrating widespread community opposition can bolster your case.
Timeliness: Act promptly to file the injunction before significant development activities commence
Conclusion
Filing an injunction under Paragraph 11 of the NPPF requires careful preparation, strong evidence, and legal expertise. It is a serious legal action that can significantly impact the development process, ensuring that all planning policies and community interests are adequately considered.
Deadlines and Exceptional Circumstances
In the UK, the time limit for filing an injunction to challenge a planning permission decision is generally tied to the judicial review process. Judicial review is the main legal route for challenging planning permissions, and it has strict time limits:
An application for judicial review must be made promptly and in any event within six weeks from the date of the decision being challenged. This time limit is set out in the Civil Procedure Rules.
Even within the six-week period, the application must be made promptly. If there is any delay within this period, the court can refuse permission for the judicial review if it considers the delay unreasonable.
The grounds for challenging a planning permission through judicial review include procedural errors, legal errors, and irrationality. This means that there must be a legal reason why the planning permission should not have been granted.
Initially, a judge will review the application to determine if there is an arguable case. If permission is granted, the case will proceed to a full hearing.
If the development has already begun or significant investments have been made, the court may be less inclined to grant an injunction, even if there are grounds for a judicial review.
It’s essential to seek legal advice as soon as possible if you are considering challenging a planning decision, given the tight time frames and the complexity of the process.
Filing an injunction or seeking judicial review past the six-week deadline is generally not permissible, and courts are very strict about these time limits. The principle of “promptness” is crucial, and courts can refuse permission for judicial review if there is any delay, even within the six-week period.
However, there are some exceptional circumstances where the court might consider a late application:
If there are extraordinary reasons that prevented the application from being made on time, the court might consider it. This could include significant new evidence coming to light that was not previously available.
If there were procedural errors in the planning decision that were not apparent within the six-week period, this might be grounds for a late application. Again, this is rare and would need to be substantial.
If the planning permission involves a continuing breach of law or regulation, the court might consider an ongoing challenge. This would still typically need to be addressed promptly.
